NYCLU/ACLU File Brief on Padilla Case: Detention Without Charges Violates His Rights

The New York Civil Liberties Union and the American Civil Liberties Union today filed a brief in federal court today challenging the government’s decision to detain U.S. citizen Jose Padilla in a military jail without charges or trial and without access to a lawyer.

“The government cannot hold Mr. Padilla in violation of his rights. The government must charge him with a crime, afford him the right to counsel and give him the opportunity to defend himself, as it is doing with others who have been accused of terrorist acts,” said Donna Lieberman, Executive Director of the NYCLU.

Padilla, a onetime Chicago gang member also known as Abdullah al-Muhajir, has been accused of but not charged with plotting to explode a radioactive bomb in the United States.

“One of the more remarkable aspects of this case,” the brief said, “is that the government has offered no cogent explanation for its decision to treat Padilla differently than other alleged terrorists arrested in this country and tried in federal court both before and after September 11th.”

Instead, the government is asking the court “to authorize the indefinite and potentially lifelong confinement of an American citizen in a military brig without any opportunity to contest the charges against him because no charges have been filed,” the ACLU said.

“The scope of the government’s position is unprecedented,” said Arthur N. Eisenberg, Legal Director of the NYCLU. “The decision to jail Padilla indefinitely as a form of preventive detention goes beyond anything the Supreme Court has ever authorized, even in wartime.”

Specifically, the ACLU and it New York affiliate argue that Padilla’s detention violates the right to due process of law guaranteed in the Fifth Amendment to the Constitution and that the government cannot evade this requirement by designating Padilla as an “enemy combatant.”

The brief also cites a 1971 Congressional statute that provides, “[no] citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

“The Administration has gone to Congress repeatedly since the tragic events of September 11th, and has neither sought nor received the unprecedented authority it seeks to exercise here,” the ACLU brief said.

Padilla was first detained as a material witness in Chicago in May 2002. He was then brought to New York, where the grand jury investigation into the September 11 terrorist attacks is based. In June, after President Bush declared him an enemy combatant, he was placed in military custody in a Navy brig in Charleston, S.C.

Although Padilla has taken the name of Abdullah al-Muhajir, the ACLU is referring to him as Jose Padilla in order to be consistent with the legal papers that have been filed in his case to date.